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Standard of Care, Treatment Guidelines and Risk Management: How Your
Malpractice Insurer Created The Testimony Against You

by Martin H. Williams, PhD

Abstract: Risk management is a set of strategies, promoted by insurance
companies, to decrease claims. Good risk management practices will
hopefully reduce your risk of being sued or of receiving a licensing
complaint. Ironically, with the passage of time, practitioners lose track of
the distinction between risk management and the standard of care. The
result is plaintiff or board expert witnesses testifying that you practiced
beneath the standard of care because you failed to use risk management
practices. Examples will be provided of this insidious process. Over the
course of time, perceived standards of care get more and more restrictive
as insurance companies succeed in promulgating their risk management
methods. What is perceived as a new ethical standard may be little more
than a claims reduction brainstorm of an insurance company bureaucrat.
Distinctions between risk management, standard of care, and ethics will be
discussed. Recommendations will be offered to enable practitioners to
reclaim control over the standards that govern our practice.
Note:The following is the text of an oral presentation delivered to the
Annual Convention of the American Psychological Association.

My talk this year focuses on the relationship between risk management and
the standard of care and how risk management either will become the
standard of care, or already is the standard of care, and how you may not
even know about it. Although this talk concerns psychotherapy, the basic
principles are equally applicable to any field of health care, including medicine
and dentistry. Standards of care inadvertently grow out of risk management
advice and treatment guidelines.

I
think part of my interest in the topic of risk management derives from the
reasons I went into clinical psychology. When I was a graduate student at U.C.
Berkeley many years ago, our heroes were not people who displayed a great
deal of concern over risk management: Albert Ellis, Carl Rogers, Fritz Perls and
Arnold Lazarus, to name a few. My peer and I were drawn to clinical psychology
precisely because it was a field of innovators and risk takers. Risk management
was an idea that my peer group, back in those exciting days, would have found
stifling--even despicablehad we ever even heard the term, which we didnt.

Today the field is different. Young clinical psychologists seem to welcome risk
management and seem to take pride in their ability to anticipate risk and take the
most creative preventative action. Indeed, risk prevention becomes a mark of
pride today, much as in the previous era is would have been a mark of shame.

Today, we seem more similar to accountantsthe kind of accountant who is so
fearful of a tax audit that he or she has you overpay your taxes, just to make sure
that no person and no computer algorithm at the IRS even notices you. Today,
we learn about the ethics code, and we even go beyond the ethics code and
learn about risk management, things we should never do because if we do them,
someone may get mad at us, or someone may think weve done something
wrong, someone might think we failed to consider all the downsides of a
particular action. Risk management is all about imagecreating the image of
competence and ethical practice. How much of our integrity are we willing to
sacrifice to create that image?

The promulgation of risk management seems to follow one of two principles:

Monkey see, monkey do. According to this principle, you practice the
same risk management methods as the person down the hall because you
are fearful that someone, with the power to judge and enforce against you,
might compare you to that person and ask why you failed to act as
cautiouslytaken to mean professionally as that person.

Keeping up with the Joneses. According to this principle, you need to
continually tighten up your risk management because everyone else is,
and if you are left behind, you will stand out like a sore thumb and appear
to practice unethically.

It doesnt matter whether you prefer monkey see, monkey do or keeping up
with the Joneses because they both leave you in the same predicament:
compelled to practice more and more risk management because everyone else
is.

Why I Have My Perspective
My perspective on this may be different from yours, not only because I seem to
feel an emotional attachment to the freewheeling norms of my generation, but
also because I make some of my living participating in malpractice adjudication.
Although I do see clinical patients, I also have forensic practice in which I testify
in psychotherapy malpractice cases in civil court and before licensing boards.

Every year prior to APA, I seem to find myself testifying in a case in which I
believe the psychotherapist has done nothing wrong, but the plaintiffs standard
of care expert says he or she has. That has inspired me when I have prepared
my talks for the panels Ive been onincluding this year.

Where do these plaintiffs standard of care experts get their material? What is
the nutritive substrate in which they thrive? It is the climate of risk management
promulgated by the APA insurance trust and other insurors, by many state
licensing boards, by medical centers for those of us who are hospital based, and
increasingly by training institutions.

The Natural History of Risk Management
Lets begin by thinking about the natural history of risk management. How does
risk management evolve to become the standard of care. First of all, consider
that this process is insidious. No one proposes a new idea to tighten the
standard of care. Indeed, the initiation of risk management practices is
considered to be utterly benign. The view of risk management as a benign
process goes something like this:

We are offering you these ideas to use to protect yourself.

You are free to take them or leave them. It is your decision.

Make your own decisions about how much risk management you want to
use. Its a free country.

I
f you would like a reference on the risk management approach to practice, there
is a book that many of you already have:

This book was sent to all psychologists who are insured by the APAIT. This book
was distributed by a malpractice insurance company, consistent with the idea
that risk management has always been driven by the insurers who pay the claims
for policy holders who engage in risky behavior. The yellow signs you see on
wet floors that say Wet Floor in multiple languages, the sign you see at your car
repair shop that says Customers Not Permitted in Work Area, are examples of
risk management efforts. The former to prevent slips and falls (and resulting
lawsuits) and the latter to prevent whatever injuries might occur in a repair shop,
that will cost the insurance company money.

Risk management is perceived as hurting no one. If a clinician adopts a
particular risk management strategylets say, for example, documenting a
written suicide assessment of every patient at every visitthats fine, the clinician
has taken a little step to protect himself or herself. The downside is not
immediately apparent. Hence, if the clinician down the hall, for whatever reason,
doesnt want to use that method, no problem. Risk management is there to help
you. It is not the standard of care, it cant be imposed on you, you wont get sued
simply for failing to follow risk management advice.

The most insidious, subtle and unrecognized aspect of risk management is this
which can be stated as if it were a law of nature: Any risk management method
that becomes popularly accepted, applied or maybe even paid lip-service to,
becomes the standard of care. Lets be clear what standard of care means.
One definition is as follows:

In legal terms, the level at which the average, prudent provider in a given
community would practice. It is how similarly qualified practitioners
would have managed the patient's care under the same or similar
circumstances. (from the web site, Medterms.net)

Standard of care testimony will be provided by expert witnesses at your
malpractice trial or licensing board hearing. And, while you may have debated
various aspects of practice in graduate schoolin a climate of tolerance and
respectin court you may be held liable for an aspect of practice to which you
never subscribed, something that evolved to become the standard of care after
starting off as a glimmer in a risk management experts eye. Thus, what is the
standard of care todaysomething you can be found liable for violatingwas
just someones risk management suggestion yesterday. If you grant this
proposition, and Ill give you examples in a minute, then suddenly risk
management stops seeming benign. It stops seeming like a harmless effort for
some people to protect themselves without in any way imposing their approach
on others. In fact, it comes to seem like the opposite: All risk management
methods of today, will later be the standard of care to which every single
practitioner will be heldand they may already be taken as the standard of
care if thats how the plaintiffs or boards expert chooses to testify.
Guidelines establish the standard of care

The APA publishes guidelines to assist us in carrying out all sorts of activities.
Here are some of the published guidelines that are relevant to practice:

Guidelines are very similar to risk management advice in the sense that they
explicitly go on record as not intending to set the standard of care but are simply
offered to help us. They all have disclaimers stating that they are not the
standard of care. Take the guidelines for treating gay, lesbian and bisexual
clients. The disclaimer for these guidelineswhich is about as perfect a
disclaimer as could ever be writtenreads as follows:

The term guidelines refers to pronouncements, statements, or
declarations that suggest or recommend specific professional behavior,
endeavors, or conduct for psychologists. Guidelines differ from standards
in that standards are mandatory and may be accompanied by an
enforcement mechanism. Thus, these guidelines are aspirational in intent.
[skipping one sentence] These guidelines are not intended to be
mandatory or exhaustive and may not be applicable to every clinical
situation. They should not be construed as definitive and are not intended
to take precedence over the judgment of psychologists.

Heres the problem, though, with guidelines or with popular risk management
strategies, or, really, with anything that is published and widely promulgated as
the proper way to do something.

I
f thats the proper way, and if your professional peers have gone to the trouble to
explain that thats the proper way, why do you want to offer methods or
approaches to the public that are not the proper way? If the guideline or the risk
management advice recommends that you exercise a certain degree of care,
why do you feel that you needin your dealings with vulnerable members of the
public [now Im using the language you might hear in court]to use methods that
are different?

As a defendant, when the jury or judge or licensing board hears that the guideline
exists, and is considered a good ideaeven though not mandatoryyou will be
called upon to explain why you, in your practice, thought you didnt need to follow
good ideas, or, to make it look worse, why you didnt even know of the existence
of the guidelines (which is actually quite possible, as news guidelines are
promulgated often by a wide range of entities).

Here are some examples of how this process has operated historically and
speculation about how it may operate in the future.

Note taking, medical records and risk management. I distinctly remember
something from my graduate student years. I was at the small Psychology Clinic
at Berkeley. This is a clinic operated by the psychology department to assist with
training those in the Clinical Psychology Program. I had just finished seeing a
patient (or clientand this distinction becomes important when we consider the
implications of the medical model on the standard of care), and I was in the file
room writing a brief note on the session. Phil Cowan, the Chair of the Clinic at
that time, and I had a brief discussion about whether its useful or helpful to write
notes. We agreed we thought it was. Now I mention this discussion only to
highlight one thing: Once upon a time, note taking was clearly NOT the standard
of care; it was an optioneven at a training program, one that we liked to think
was prestigious.

Why wouldnt you want to take notes about your session? The reason this was
debatable mostly had to do with whether one wanted to approach therapy from
the medical model. Do psychologists want to construe what they do as
treatment, much like medical treatments, and do they want to adopt the various
trappings of the medical world. Do we want to be called doctor, and do we
want to call those we serve patients? And, do we want to adopt the medical
philosophy of documentationif its not documented, it never happened. Do we
want to treatment, rather than consultation? Do we want to have a treatment
plan? Do we want to make a diagnosis?

Some psychologistsmany more, I think, back a few decades ago and fewer
todaydo not think of what we do as medical, or as a treatment, or as something
for which written documentation is appropriate. We see our work as forming
relationships with patients, relationships that are unlike that of doctor-patient, but
more like teacher-student, consultant, clergy-parishioner, or simply peers. Some
of us believe that medicalizing that relationship by writing notes about how the
patient is progressing or even about what happened during the session creates
a barrier between the two people who are engaged in a personal journey
together. Along those same lines, some of us eschew diagnosis and treatment
plans.

It doesnt really matter whether you agree with this Humanistic approach to
psychotherapy. It serves as a good example of how risk management
evolves to become the standard of care. Somewhere along the line,
psychologists thought it would be a good idea to document what you did in
therapy as a way of protecting yourself from certain claims, especially
claims that you failed to do something. If someone claims you failed to ask
your patient if he or she was still feeling suicidal, and your notes show that you
did ask that question, bingo, youre protected. If the patient later suicided, but
after the session you wrote a note documenting the reasons that you believed
the patient was not suicidal, and those reasons make sense to a later
adjudicator, you have a degree of protection that you wouldnt have had you just
reconstructed that session from memorysubject to the skeptics view that your
memory had been conveniently altered and rearranged to diminish your liability.

So it makes sense that those of us who want more protection would minimize
their risk by taking notes, taking notes to document that we did all those things
that someone later might claim we failed to doa fine risk management idea.
Fast forward to 2002 and we find that record keeping is no longer about risk
management. It has become the standard of care:

6.01 Documentation of Professional and Scientific Work and Maintenance of Records
Psychologists create, and to the extent the records are under their control, maintain, disseminate, store,
retain, and dispose of records and data relating to their professional and scientific work in order to (1)
facilitate provision of services later by them or by other professionals, (2) allow for replication of research
design and analyses, (3) meet institutional requirements, (4) ensure accuracy of billing and payments, and
(5) ensure compliance with law.

One no longer keeps records to protect oneself. Now, one keeps records
because not doing so is considered unethical in and of itself. Risk management
evolves to become the standard of care.

Another Example: Informed Consent: The APA Code tells you to document
that you obtained informed consent:

This is an area where we can see the risk management evolving across
professions to become a standard of care. Psychologists are required to get
informed consent, and they are required to document that they got it.
Interestingly, the documenting part of this requirement hardly concerns ethics.
Obtaining informed consent is about ethics; failing to do so would be unethical.
But why is the requirement to document the consent in the ethics code? The
documentation part is not really about ethics; it is about risk management. One
documents in order to prove that you did it.

But the Ethics Code of the California Association of Marriage and Family
Therapists takes this excursion from ethics to risk management or self-protection
even further. In their code, written consent is required before videotaping,
audiotaping or allowing a third party to observe. Similarly, the Code states that
written consent is needed before releasing information. Using these MFT
guidelines, the patient would have a harder time denying that he or she gave
consent because youve got signature. So this is risk management couched as if
its ethics.

Expert Testimony: A Case Example

If you are ever sued, or if you ever receive a licensing complaint, please be
aware that the ethics code is not the only place where the plaintiff or state will
look for the standard of care. They will look towards expert testimony, and here,
more than anywhere else, is where you will find utter confusion between that
which is risk management and that which is the standard of care. Remember,
the law states that you must comply with the standard of carenot risk
managementso the difference should be important. But try to tell that to the
states or plaintiffs expert.

I will use the example of my most recent malpractice testimony, in Sonoma
County this past Spring. Ill use examples from this trial for two reasons:

The defendant therapist was accused of a great many deviations from the
standard of care, and

That of which she was accused were the typical themes that play
themselves out in most psychotherapy malpractice trials.

Also, this was a civil suit with a jury trial, so keep in mind that the jurors, who
seemed reasonably bright, knew little about our field and probably had less of
an understanding than we do about the differences between the standard of
care and risk management.

To make a long story short, nearly all the plaintiffs expert testimony concerned
itself with matters that I would call risk management and not with the standard of
care. In fact, my central effort in my testimony was simply to explain the
difference in meaning between these two concepts. Ill tell you right now that the
outcome was a verdict for the defense, but it was no slam dunk. It could have
gone either way. Fortunately for the defendant, her malpractice insurance
company retained perhaps the two best malpractice attorneys in California,
Brandt Caudill and John Fleer. Brandt has coauthored a book with Ken Pope on
law and psychotherapy, and John was a consultant to APA on the 2002 Ethics
Code revision. By the way, it was a woman therapist and a woman defendant,
and one of the central allegations was that they had had a sexual relationship,
and to further place it in a context, they both resided in the same small town in
Sonoma County. Here were some of the matters at issue:

During a time when the patient had been hospitalized for medical reasons,
the therapist came by the patients home to feed her dog. This was
presented as a boundary violation, and the jury was led to believe that
this was a deviation from the standard of care. As John Fleer said to me
privately, our field may be the only field of human endeavor in which
ordinary acts of kindness are made to appear unethical. So lets consider
whether feeding your patients dog is unethical: The only actual rule that it
may violate is the prohibition against certain kinds of multiple
relationshipsthose that involve a loss of objectivity, that cause harm or
exploitation. Clearly, the patient is not exploited by the therapist helping
her in this way, and its hard to envision the patient being harmed. So the
plaintiff argued that feeding the dog was part of an overall breakdown in
the distinction between the professional and the personal, so it was an
indication that a personal relationship existed, in addition to the
therapeutic one, and was therefore unethical due to a loss of objectivity.

Clearly, if one takes risk management as the standard of care, then
feeding your patients dog is a terrible thing to dofor exactly the reasons
that were used in this case. Feeding your patients dog is a bad risk
management idea because it could give the appearance that a personal
relationship existed along with the therapeutic relationship. Indeed,
feeding your patients dog would be consistent withnot inconsistent
withthe sexual relationship of which this therapist was accused. So,
would I recommend that anyone ever feed his or her patients dog?
Absolutely not, because it could look bad and it could be used against you
if your patient is litigious. But did the therapist violate the standard of
care? Not if all she did was feed the dog, and if she was able to do so
without impairing her objectivity in the rest of her treatment of her patient.

By the way, I may as well mention that this was a case in which the
therapistwho, I believe, never violated the standard of carepracticed
absolutely terrible risk management. The plaintiffs attorneys bombarded
the jury with all of the risk management failures in this case in an effort to
make the jury believe that the standard of care had been violated.

The therapist was aware that the patient had very little income and had
periods during which she was not employed. Because of this, the
therapist lowered the fee, or even excused the fee, for periods of time.

Not charging a fee has been cited in several cases in which I have been
retained as an indication of negligence. There is absolutely no deviation
from the standard of care if you fail to charge a fee, yet it is a very
questionable practice from a risk management standpoint. Why?
Because if the patient ever alleges that a sexual or any other kind of
overly close, unethical relationship occurred between himself or herself
and the therapist, forgiving the fee would be consistent with that kind of
unethical relationship. Lets put it this way: If the patient were also your
sexual partner, would you have the nerve to charge a fee for therapy? So
the lack of a fee appears consistent with therapist-patient sex, and most
instances of therapist-patient sex probably include fee problems as well,
but the important point is that failing to charge a fee is not, in and of itself,
an indication that sex, or anything else unethical, has occurred.

From a risk management point of view, then, one should always charge a
feeindeed, always charge the same feeas a statement to the world
that the relationship is 100% professional and unbiased. No payment, no
session. From a risk management point of view, once you start lowering
the fee, the door is opened to accusations that you actually like the patient
and want to find ways to help him or her. Thats completely harmless to
you until the patient wants to accuse you of having sex with him or her.
Then, the reduced fee is taken as proof that you had lost your objectivity.

This, then, highlights one of the biggest downsides of risk management: It
can cause you to act in ways that dont feel right and in ways that harm
the patientall in the interest of creating a record that documents that you
were objective, impartial and highly, highly professional.

At times during sessions, the patient elected to lie on the floor and talk to
the therapist from there.

Once again, I know of no stricture that holds that
patients must sit on chairs during sessions. There was no standard of
care violation, but, from a risk management point of view, this was not a
good idea. The patient claimed that it was during these episodes of lying
on the floor that the therapist molested her sexually. The therapists notes
actually confirmed that the patient had laid down on the floor, or on a mat
in the office, so the jury had confirmation of half of the claim, the lying
down part, but would they believe the entire claim, that the lying down was
associated with inappropriate sexual behavior. Someone versed in risk
management would advise never to allow patients to deviate from ones
usual method of sitting with patients. Remember, the essence of risk
management is to deprive the potential plaintiff of support for false
claims by depriving the plaintiff of the existence of behaviors or
events that might be consistent with those false claims. Documenting
that the patient laid down opens the door for the patient to also claim that
something untoward had occurred while she was lying down. The
plaintiffs expert testified that the lying down was part of an overall pattern
of a breakdown of therapeutic boundaries. Hence, the standard of care
was violated by the accrual of various departures from the hypothetical
normative psychotherapeutic sessioneven though there was no
confirmatory evidence that any actual deviation from the standard of care
had occurred.

Remarkably, in this case, the accusations kept on coming.

The therapist was discarding an old, Brother word processor. This was a
device that was available before personal computers became popular. It
was a little more advanced than a typewriter. Remember, the patient was
nearly destitute. The therapist had this old word processor that, at the
time, had no value. Its destination was to be the trash, but the therapist
offered it to the patient. This gift was another bit of evidence used in
support of a breakdown of boundaries in the service of an overly personal
and sexual relationship that had deprived the plaintiff of the needed
therapy. Is it unethical to give things to your patient? No, it is not. If is
poor risk management? Definitelybecause it creates the image that you
are carrying on an unethical multiple relationship with your patient, where
you are both therapist and friend.

Potential Risk Management Advice That May Someday Become The
Standard of Care

It is not difficult to think about the risk management advice you get today and
imagine it someday becoming the standard of careand that someday could
be as soon as an expert witnesses convinces the jury that it currently is the
standard of care. The basic principles by which risk management becomes the
standard of care is along the same lines of either monkey see, monkey do, or
keeping up with the Joneses.

I
t can be seen as a cycle that works like this: Someone promulgates risk
management advice. One prong of the cycle involves psychologists in training
who receive the given bit of risk management advice. They begin their careers
taking the particular advice to be gospel. De facto, it becomes the standard of
care for that cohort of psychologists. Alternatively, a given bit of risk
management advice is promulgated to practicing, experienced psychologists,
and it becomes quite popular. Like a song, it may become a hit, meaning that
many psychologists practice according to this new piece of advice. If a large
group of psychologists then believe that one ought to practice that way, youve
got yourself a new standard of care. Standard of care is based on popularity. It
is not based on the APA Ethics Code and it is not empirically based. It is all
about perception.

Here are some bits of risk management advice that could be seen as the
standard of care in the future, or may be the standard of care now, depending on
who is testifying against you.

A written suicide assessment should be part of every treatment note.

Therapists should never hug patients.

A written summary of every medication the patient uses should be part of
every treatment note.

Therapists should contact the psychiatrist to coordinate care with all
patients who receive prescription psychiatric medications.

The patient should sign a consent form for all treatment.

Every patient should have a written treatment plan, and this should be
updated frequently.

Every patient should have a diagnosis and mental status exam at every
visit.

Fighting Back

Actually, the only way I can imagine preserving a different vision of the standard
of care is to publish material that establishes the standard of care you want to
establish. If you want to educate the court as to the existence various divergent
therapeutic approaches and that the defendants approach is considered
legitimate by those who share the same theoretical orientation, you can cite
things Ive written. Most of all, we need to understand that this continued
pressure to incorporate more and more risk management into our practices is not
without its costs.

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